Posted
by
Unknown Lameron Wednesday September 04, 2013 @09:34AM
from the you-may-not-listen-in-that-order dept.

AmiMoJo writes "The Ministry of Sound, a UK dance music brand, is suing Spotify because it has not removed users' playlists that mirror their compilation albums. The case will hinge on whether compilation albums qualify for copyright protection due to the selection and arrangement involved in putting them together. Spotify has the rights to stream all the tracks on the playlists in question, but the issue here is whether the compilation structure — the order of the songs — can be copyrighted."

Compilation albums of EDM can go two ways, mixed and unmixed tracks. If the tracks are continuously mixed by a DJ for MoS (very common), there could be a claim that they have some rights to that compilation. If its just a series of unmixed tracks (the original songs just thrown into a playlist) than there shouldn't be an issue.

It worked for Metalica didn't it?
Oh, wait. I haven't listened to a Metalica song (even on the radio) since those asshats started sueing their fans back in th Napster days.
And I'm sure that I'm not the only one.

You're not the only one. I was just getting into music and metal when Napster came around, and I decided I would avoid listening to Metallica and not download their stuff since they didn't want me to.

You should see the look on people's faces when we have conversations like this? "You like Slayer?" Yeah! "You like Pantera?" Yeah! "You like Megadeth?" Fuck yeah! "You like Metallica?" Eh, not really. That's when their jaws hit the floor.

Bands have fans, a producer of compilation albums I don't really think so. They had a product that was relevant before the iPod revolution where everybody started buying single songs and making their own playlists. They're practically obsolete now, but is looking to cash in before the label goes out of business. Like SCO trying to trick $699 out of people before going out of business, what did they have to lose?

The mixing itself can be copyrighted and is part of the copyright covering the music track HOWEVER the list of mixed tracks that are on the CD are still just a list of tracks on that CD and is no different from the list being on the Amazon page for the CD or the list of tracks as part of that CD on iTunes. Its a fact about the CD contents and not a creative work.

If it was the case (and it's not in any way when listening to tracks on a CD) that the actual sound mixing was a functional output of t

To clarify, if its just a list of songs, it shouldn't be a copyright problem, as in MoS has no copyright claim.

Not true -- UK copyright law has specific provisions to protect anthologies. It's termed "typographical arrangements". The idea is that if I spend a year compiling a book of medieval poetry (all individually out of copyright, obviously), I get a monopoly over the book as a collection, so no low-rent outfit can produce a cheap edition to undercut you and steal your market.

It's a good law, in that it implicitly recognised that an anthology deserves less protection than a truly original work: the term is restricted to 25 years from first publication.

What I don't know is if anyone has established by legal precedent whether a compilation CD is considered a typographical arrangement or not, but that will be the crux of Ministry of Sound's case.

As a DJ (who had its mixes featured on a national radio network), I'd like to point out that while beatmixing is an art, but so it is selection (which is obvious) and programming (knowing which song to put after the other, which seems to be lost on younger DJs). Then come charisma and reading the dancefloor but these are not issues in this case.

I still think suing is a bit extreme. Yet Spotify should be removing playlists who have different originators than specified, simply because if mr X does a playlist

THIS, and I'll raise you that Spotify should ban their music. There are lots of other equally-or-more-talented musicians who would kill for a chance at exposure.

I'm sure Ministry of Sound would be happy getting their stuff played exclusively on ClearChannel FM and/or sold at [insert failing big-box 'electronics' store here]. Meanwhile, artists with business knowledge will be out promoting the shit out of their music and making a killing.

It's not their music. They don't own the tracks. Are you suggesting that Spotify should ban any track that Ministry of Sound have licenced to include on a compilation album? This is the most popular music in the UK, that's why MoS put it on compilation albums. Spotify would be committing commercial suicide by banning that much music.

Oh for the love of all that was good in British music, that is very sad if Electronic Dance Music is the most popular now. What happened to the country that gave us the Beatles, the Who, Led Zeppelin, and even Blur? Sad, sad, sad.

If they think they're going to sell CDs in this day and age, they're idiots who should not be allowed to handle money. No, this is one middleman trying to squeeze every last penny they can from the next middleman.

I can make a judgement. If this is a derivative work that stands as a work of art separately from the tracks contained, then they needed permission from the original copyright holder to make this compilation. If they are paying royalties solely for putting the tracks themselves on a CD and not to make a derivative work, then I think we have an answer to whether this is protected. It's not.

Yea shame on them for trying to defend their business model, which is their feudatory duty to their share holders. Don't get me wrong, their business model sucks, but if they don't defend it they aren't doing their jobs.

Such bullshit always comes up on these stories. "Sure, the company pumped toxic waste into the ground water, but they have a duty to their share holders to maximize profits!"
Bull. Shat.

Having a fiscal duty to make their shareholders money doesn't change the ethics or ridiculousness of the situation. It simply explains what their goals are. They should still be shamed. You only point out that their shareholders should ALSO be shamed. Their "buisiness model" isn't under attack here anyway. The order songs play in isn't their business model.

LOL if the DJ plays the songs in the wrong order? Sorry, but a DJ's job partly includes being able to play tracks in just about any order - there is no "wrong" order unless the DJ has a set prepared, and even then, the disorganization that accompanies being a party DJ means you're getting requests, missing LPs/CDs/MP3s, deciding that the mood doesn't fit what you prepared, etc. There generally isn't a "right" order, and like a violinist who misses a note, a good DJ will keep going and the audience will neve

The court is not formally bound to follow the precedent set in the other case, but perhaps ought to be aware of the legal scholarship involved; that can carry over between jurisdictions, though only with persuasive power and only as one of the many aspects that ought to be considered.

I went [to the Ministry of Sound club] before it was popular. Twice! And I regret it. Twice! It was all about owning the most expensive shirt when, at the time, everyone in the scene was wearing jeans, t-shirts and trainers.

Doesn't surprise me. The Ministry of Sound was a major part of the corporate appropriation and commercialisation of the UK dance music scene. It rose to prominence around the same time (early to mid 90s) that the Tories were trying to outlaw the "underground" egalitarian Ecstasy-related house music and rave culture that had taken off here in the late 1980s- via the likes of the Criminal Justice and Public Order Act 1994 (with its infamous "repetitive beats" definition)- and the "superclubs" like them were on the rise.

Shouldn't be surprising that MoS was founded and owned by James Palumbo, a privileged, Eton-educated son of a Conservative peer, then.

To be fair, I never liked most Ecstasy-related dance music full stop and wasn't into that culture, but I could respect some of that early stuff for its energy as a youth culture. MoS et al, OTOH, seems to be responsible for the endless, life-sapping, unoriginal recycled "heard it before 5, 10, 15 and 20 years ago and it was toss then" stagnated chart fodder we still have today.

Ministry of Sound is officially evil.
The electronic music was supposed to be like open source, where Djs and producers do allow creative use of their music, because Djing and remixing is not possible without sharing.

You would think that if the order didn't matter then people wouldn't be creating and seeking out the cloned lists.

People seem to be getting upset that you have a company suing over the ordering of some tracks, but the demand is there for it, which suggests the value is also there. People value the MOS arrangement, which is why they can be successful in selling compilations. Also, if people are publishing lists that use the MOS brand but aren't technically identical to the likened MOS product - e.g. due to v

Assuming there was an iota of human creativity involved, Americans who bother to put their grocery lists into a tangible form have been given copyrights on them since the late 1980s, if not longer.

An interesting thing about copyrights: While it rarely has any legal meaning, two people who independently create the same work can hold copyright to the same item. It's rare that this has any legal impact for truly creative works because if the second person to create the work did so after the first work was pu

It also comes into play with "functional" items like relatively short blocks of computer code where there may be very little "flexibility" in how you code something. For example, if I come up with a 5-line sorting algorithm and describe it in text (not code) form, two readers may independently implement the algorithm in the same language, call the function "sort," and use "a, b, c, etc" or even "i, j, k, etc." as variable names, not do any comments, etc. and result in exactly the same implementation. Both have a copyright on the implementation, just as much as if they had named the variables after their children's pets and called the function "newsortireadinabooksomewhere()".

Assuming, that is, that it is copyrightable at all. This is the filtration step of the abstraction-filtration-comparison test from the Altai case. Copyrights don't protection functionality; only creative aspects of software. Actual usefulness has to go under patents instead. Thus, the algorithm used isn't copyrightable. If there are a limited number of ways to implement that algorithm, particularly if external constraints like efficiency are involved, the implementation merges with the noncopyrightable func

Assuming there was an iota of human creativity involved, Americans who bother to put their grocery lists into a tangible form have been given copyrights on them since the late 1980s, if not longer.

Really? I'll believe you, but I've never heard of this.

Unless you do your grocery list like a poem or something, what about a grocery list is subject to copyright? It's a list of nouns, and possibly quantities -- there's not a whole lot of 'human creativity' involved in any grocery list I've ever seen.

How do I protect my recipe?A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a re

In the USA, this would likely boil down to how much creativity went into the list and whether its use is causes any economic harm to the copyright owner.

From a non-legal perspective, I think the music company is being foolish. They may win this battle in court but they are alienating their customers in the process. This is not the way to win friends and influence money-spending people.

"What we do is a lot more than putting playlists together: a lot of research goes into creating our compilation albums"

Ouch! My sides are hurting from laughing after reading that.

Seriously, how much research does selecting a a number of Top 100 chart songs that aren't too dissimilar really involve that make it so vastly different from the mixtapes many of us made back in the days?

Apparently enough that people are just copying MOS rather than making their own. I'm not sure I like the precedent it sets so I can't say I'm for it, however if I knew this would be restricted to stopping people lazily ripping off playlists instead of creating their own I wouldn't have any issue with it.

Seriously, how much research does selecting a number of Top 100 chart songs that aren't too dissimilar really involve that make it so vastly different from the mixtapes many of us made back in the days?

I take it you're not a DJ. I don't know if Ministry of Sound UK is building solid sets or not (I actually have a few of their compilations, but haven't listened to them for structure), but the difference between a professional set and a mix tape is like the difference between a well designed database and the chaotic crap-fest data-dump that front-end programmers hack together when they're prototyping. A good set can take many hours to build and gets refined over months, or even years.

Theoretically, a playlist/mix should be eligible for protection under copyright law. It's just that a copyright only protects a work from being copied. It's different from patents. If two independent people come to the same idea, there is no cause of action between them under copyright law. Someone needs to be able to show by a preponderance of the evidence someone copied someone else. It would be hard to prove someone 'copied' a playlist. It works with easier with recordings or specific songs, but I'

UK copyright law has a specific category for "typographical arrangements" that is a right to a particular anthologisation. The classic example would be the church hymn book. I am allowed to compile as many different hymn books with different selections of hymns, and different selections of verses for each hymn, but I couldn't just copy someone's selection hymn for hymn, verse for verse. This recognises the time and effort expended on making the selection, and guarantees that the person who takes that time and effort isn't going to get undercut by some low-rent publishing outfit who immediately clones his product. (The fact that many of these hymnal publishers also engage in the morally dubious practice of "copyright pollution" by making minor alterations to the hymns themselves is by-the-bye.)

One of the bestbits about this particular provision is that it implicitly recognises that a typographical arrangement is intrinsically less valuable than an original work -- they are protected for 25 years from the year of publication.

Tell MoS to suck it. It's not Spotify's fault that its users are creating playlists that are "copies" of compilation albums and neither is it Spotify's job to prevent such a thing from happening. If they wanted to stay profitable, perhaps they should have taken the time to form a business around providing an actual product and/or service rather than stumbling around a 1 room "apartment" saying "Duuuuuude" oh, sorry, UK: "Maaaaate, that mixed tape is wizard. You should sell it and cut me in on the profits!"

It was decided a while back that while you can't copyright an individual record of a database that contains public information. You can copyright the database in its entirety.

If a duplicated exactly every record of your million record database, its a good chance I just copied it instead of collected the data myself. If I copy your 10 record database exactly, or public information, can you really prove I copied your database?

Or just add one of those ridiculous copyright disclaimers you find all over YouTube whenever anyone uploads a whole album. People think using the phrase "For fair use", "Research only" or "I don't own this" is enough.

At least stateside, "facts" aren't copyrightable. This applies (for example) to phone books -- but perhaps even more applicable is recipes. You can copyright the comments *about* a recipe, but the recipe, itself, is not copyrightable. It seems to me that it's a fairly small leap from an ordered list of ingredients to an ordered list of songs.

However, this is a UK suit. Feist isn't precedent. Also, it appears that the rest of the world (outside of the US) seems more friendly to the idea of copyrightable collections: the EU "database right" [wikipedia.org] (and more specifically implemented in the UK by the The Copyright and Rights in Databases Regulations 1997 [legislation.gov.uk]); the explicit language in the Berne Convention supporing the copyrightability of collections (Article 2, section 5); and the corresponding wording in the GATT Uruguay Round Treaty Agreement, specifically in the TRIPS Agreement [wikipedia.org].

Suing over something silly is an old trick to get publicity. There are sure to be people who have never heard of "The Ministry of Sound," who hear about the lawsuit, and decide to check out the music just to see what the hoopla is about. They might lose the lawsuit, but still win new customers.

The economics of patent trolling are that one can make more money from extortion than from producing a product. Under those circumstances, it makes perfect sense to sue a company that "helps" them sell their stuff.

You're thinking of Feist v. Rural [wikipedia.org], in which the courts held that collections *might* be copyrightable, if there were originality in the selection, order or presentation of the list. (and well, everyone in a given area, in alphabetical order, as a standard phone book didn't qualify).

So, if this is just a '20 best songs', by some well known metric, it's not an original selection. They *might* have done some work to deal with the ordering... many DJs will consider the tempo of the outro / intro of songs so

No, in the US they have a good argument. The issue is whether there was sufficient creativity in the selection of which tracks to include, and which order to arrange them in, as to justify a copyright.

The white pages in a phone book could be copyrightable. But so long as the selection of information is merely the name of the telephone subscriber, their address, and their number, and the order is merely alphabetical, in last name order, it's not creative; all the white pages are like that, and the reason is

However, if they did not procure a license to make a "derivative work" and only to release the tracks on a CD, then how can you consider the arrangement of tracks to be a separate work that can be copyrighted? They would have to get permission from the copyright holder and probably pay additional royalties.

Well, this case is taking place in the UK, and I don't know anything about their law (other than that they have wigs, which seem neat). My analysis is more or less how it would work out in the US.

In the US, a derivative work is not the same thing as a compilation. (Although I suppose it is possible to have a compilation which is itself derivative of a preexisting compilation)

Here are the relevant bits of the statute:

17 USC 101

A âoecompilationâ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term âoecompilationâ includes collective works.

A âoederivative workâ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a âoederivative workâ.

17 USC 103

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

If the compiler has the right to make the compilations at all, which they apparently do (or

Yes, when the original composers and artists of the songs themselves release an album your logic applies. If somebody else were to mix a bunch of 3rd party songs and try to sell them on a CD the "artistic decision" of the original artists and composers is absent.

Just to be the devils advocate here; would it be right for Spotify or its users to claim copyright over all their playlists? They're released publicly and required "artistic decision" to create.

There are two questions here: an ontological one (is authorial intent immanent in a playlist?), and a moral one (would it be right to claim copyright over all of one's publicly created playlists?). Of the two, the ontological one is fundamental to the moral one. If authorial intent is not reflected in the playlist, then there is no moral argument.

By the original artists? Sure. But on a compilation album, to consider it artistic would be to consider it a derivative work - which requires approval from the artist and different licensing than just releasing the songs on CD. And I'm pretty sure MoS only paid for the latter. And if so, then how can they claim copyright on the ordering?

I think this very much depends on where the trial happens, UK or US. IANAL - but my understanding of US copyright law - you generally can't copyright lists of things like facts. For instance - from a lawsuit a very long time ago - you can't copyright the information in a phone book. So - if you can get away with the argument that a compilation is merely a list of songs - that is a winning argument for Spotify. I have no idea what the take on this is in the UK - so your mileage may vary considerably.